Writing Around the Law

It seems that in a number of areas of legal scholarship (intellectual property, privacy just to name some that I follow), law profs are increasingly writing about extra-legal issues - such as the power of norms.  I have read a lot of good legal scholarship (and written some hopefully passable scholarship myself) that talks about extra-legal means of regulation and that focuses on things like norms and market forces as regulators.  But recently I've wondered if this is the appropriate role for lawyers?  Should we be focusing more on law and only touching on other regulatory modalities in the context of talking about their distinct interactions with law?  Are we potentially trying to be jacks-of-all-trades-and-masters-of-none?  Just my Friday night musings .....

Comments

[TJ]

I think this is inevitably a question of degree. A legal article that pretends law is a self-contained island within human society and ignores "extra-legal" considerations such as social norms and market forces would often be quite terrible, I think. Legal realism and interdisciplinary scholarship is a bridge we crossed long ago, as much as many practicing lawyers wish otherwise. At the same time, one would expect that a law review article would at least consider traditional legal sources such as cases, statutes, and the like; and the appropriate mix is a hard question.

[Jeff Lipshaw]

TJ, if practicing lawyers wished otherwise, it's more likely because they aren't interested in the subject matter of law review articles, rather than their interdisciplinarity.

Peter Goodrich (Cardozo) has a nice piece on this: Intellection and Indiscipline, 36 J. LAW & SOC'Y 460 (2009). I'm sure I didn't do him justice, but this was a comment I summarizing his viewpoint in my own recent piece about interdisciplinarity in academia and practice:

"Peter Goodrich correctly observes that law as practice long preceded law as discipline, and has always been, by nature of what lawyers are required to do, 'interdisciplinary.' Moreover, this very practical interdisciplinarity creates its own issues with the modern legal academy. Accordingly to Professor Goodrich, the scholarly crisis of academic law has arisen out of its (in my words, very pragmatic) homelessness between and among all the other disciplines of human behavior. The effect of such homelessness, says Goodrich, has been to encourage legal scholars, in essence, to create a tradition of disciplinary boundaries and norms (largely dependent on arguments from authority) where perhaps fewer ought to exist, and that it may be time for the discipline to undertake 'a frank acknowledgment of the value of indiscipline both to novelty and intellection.'"

[TJ]

Jeff, I'm not sure there is any contradiction between what Goodrich and I are saying. Based on the abstract (I could not get the actual article since it is not on Hein or SSRN), Goodrich is saying that law and legal scholarship is inherently interdisciplinary. But just because something is inherent doesn't mean that many people do not wish it otherwise (e.g. death is inherent in life). I think many in the practicing bar do wish professor would adhere to the "tradition of disciplinary boundaries and norms" that are dependent on arguments from authority.

And I think it difficult to divorce the "subject-matter" of scholarship from its interdisciplinary nature, assuming that law as a discipline is not entirely vacuous. Put it this way, I think much of the practicing bar would find law review articles titled: "Is Justice X's statement in A v. B dicta or ratio?" more interesting than much of what is out there.

[anymouse]

I've been thinking about this a lot recently. Here's what I've come up with so far.

The goal of law is to change and control human behavior. We long ago realized that law doesn't change behavior in the ways we expect. Psychology, norms, DNA, economics, political reality, history, and many other forces play strong roles. Therefore, if the goal is to change and control human behavior, then one can't help but engage with other disciplines; and it is totally legitimate to do so. The important question is whether law professors are actually equipped to do this well. Scholars in these other fields would surely say that we are not, with a few exceptions.

What then?

[Orin Kerr]

Anymouse,

I do not agree with you that "the goal of law is to change and control human behavior." That is *one* goal of law in many instances, to be sure, just as it is one goal of war. But that is not the only goal of law, and I don't think it's useful to think that all things that relate to changing and controlling human behavior are important or even relevant to the field of law.

As for the value of interdisciplinary work in law generally, I think it depends on the work. Some of it insightfully reveals how areas outside law shine light on the legal system and legal questions. On the other hand, some of it reflects the reality that a lot of law professors either aren't all that interested in law or can't think of anything new to say about it.

[anymouse]

Orin:

What else does law try to do, other than change and control human behavior?